TMI Blog2014 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ry evidence/proof. The mischievous role of Shri Anil Kumar erstwhile Director with the assistance of Accountant Sri Vasts cannot be ruled out - when there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible. No purchase of raw material out side the books have been proved. no case is made out for extra so called clandestine sale of the Portland Cement to the said parties - Decided in favour of assessee. - Central Excise Appeal No. - 228 of 2010, Central Excise Appeal No. - 528 of 2011, Central Excise Appeal No. - 529 of 2011, Central Excise Appeal Defective No. - 126 of 2010 - - - Dated:- 2-9-2014 - Hon'ble Tarun Agarwala And Hon'ble Dr. Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) and 173Q as the same stood at the relevant time read with Rule 209 of the Central Excise Act, 1944 also imposed penalty of ₹ 7,20,154/- in terms of Section 11-A-C of the said Act. Besides penalty to the tune of ₹ 3,65,000/- under Rule 209 of the Central Excise Rules, penalty was also imposed against each of the Directors namely Shri Ajit Kumar, Shri Jagmohan Goel and Smt. Kamlesh Tayal. Being aggrieved, the respondents preferred appeal before the Commissioner (Appeals) which were allowed vide order dated 29.3.2004. Not being satisfied the Department has filed appeals before the Tribunal, who ex parte has allowed the appeals filed by the Department. The recall applications were also rejected by the Tribunal. Being aggrieved th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submits Sri Ajit Kumar, one of the Director of the company was summoned by the Department and his statement was recorded where it was mentioned that his signature was forged on the said parallel documents. The documents have not been issued by his unit and the same have been prepared unauthorizedly and illegally by Sri Anil Kumar former Director of the company. He submits that no sale was made out side the books and the complaint was entertained after 4-5 years, which has no relevance. In the absence of any other corroborative evidence of clandestine removal, penalty could not be imposed, on such singular ground specially without providing the physical production of goods and their clearance. Lastly, he made a request that impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has received consignment against Billty Nos.4272 and 732, dated 26.9.1994 and 3.10.1994. Regarding other billties which were received along-with the anonymous complaint, he has declined his signature. Learned counsel also submits that all these buyers have accepted that the goods were sold by the appellants' company. Lastly, he justified the impugned order passed by the Tribunal. For the purpose, he placed reliance on the ratio laid down in the case reported as 2007(216) E.L.T. 660 (S.C.) Prakash Metal Works Vs. Collector of C. Ex., Ahmedabad. 10. We have heard the learned counsel for the parties and gone through the material available on record, from which it appears that Shri Shubhashis Dev, Government Examiner of questioned doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department. 14. In the instant case, no investigation was made by the Department, even the consumption of electricity was not examined by the Department who adopted the short cut method by raising the demand and levied the penalties. The statement of so called buyers, namely M/s Singhal Cement Agency, M/s Praveen Cement Agency; and M/s Taj Traders are based on memory alone and their statements were not supported by any documentary evidence/proof. The mischievous role of Shri Anil Kumar erstwhile Director with the assistance of Accountant Sri Vasts cannot be ruled out. 15. In view of the above, we are of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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